Thursday, August 13, 2009

Dumb and Dumber on Death and Dying

Sarah Palin and Senator Chuck Grassley are working together to spread lies regarding the substance of pending healthcare reform legislation. Last week, Sarah Palin posted a note on Facebook, which states that:

The America I know and love is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama’s “death panel” so his bureaucrats can decide, based on a subjective judgment of their “level of productivity in society,” whether they are worthy of health care. Such a system is downright evil.

Not to be outmatched by his conservative colleague, Senator Grassley stated yesterday that people “[s]hould not have a government run plan to decide when to pull the plug on grandma. . . .”

Palin and Grassley Are Liars

It is difficult to use polite prose when two individuals are intentionally making false statements. As many commentators have already observed, conservatives like Palin and Grassley are attempting to foment fears concerning a fairly innocuous and medically sound provision in the proposed healthcare reform legislation that would compensate medical providers for offering “end-of-life” counseling to individuals. During the counseling sessions, the caregivers would provide information to patients related to: advanced directives, health care proxies, state and national resources that assist patients and families regarding end-of-life issues, palliative care, and care in a hospice setting (see sect. 1233 of the proposed healthcare legislation).

Despite the plain language of the proposed statute, Palin and Grassley continue to float their death narratives. As the Politico reports, Palin remains defiant and has released another statement (in response to criticism by President Obama) which asserts that: [I]t’s misleading for the president to describe this section as an entirely voluntary provision that simply increases the information offered to Medicare recipients. . . .” Of course, Palin’s new statement fails to point to any specific language in the bill that would make such counseling mandatory.
Furthermore, Grassley made his “pull the plug on grandma” statement after many commentators had already debunked Palin’s death panel claim. Facts mean nothing in a smear campaign.

Medical Professionals Endorse End-of-Life Counseling

One of the worst aspects of the conservative effort to stoke fear regarding the end-of-life provision is that medical professionals strongly advise that this type of counseling take place. The American Medical Association, for example, has issued an official policy statement (E.225) that addresses the inadequate nature of end-of-life counseling:

More rigorous efforts in advance care planning are required in order to tailor end-of-life care to the preferences of patients so that they can experience a satisfactory last chapter in their lives. There is need for better availability and tracking of advance directives, and more uniform adoption of form documents that can be honored in all states of the United States.

The AMA has issued several recommendations, based on its own assessment of the “discouraging evidence of inadequate end-of-life decision-making.” One formal recommendation states that: “Physicians should discuss the patient’s preferences with the patient and the patient’s proxy. These discussions should be held ahead of time wherever possible” (italics mine). The proposed legislation basically enacts this measure by compensating caregivers who hold such counseling sessions every five years for their senior patients.

Palin and Grassley Are Shameless Hypocrites

The worst aspect of Palin and Grassley’s deception regarding death is their utterly shameless hypocrisy. They, like a growing number of conservatives, portray the proposed healthcare reform legislation as symbolizing the horrors of a “big government” invading individual liberty and privacy. They also suggest that it is particularly egregious for a government to decide who can live or die.

If Palin and Grassley applied these principles consistently, they would not have an audience among social conservatives.
Palin and Grassley are both staunchly anti-abortion. Grassley earned a perfect 100 score from the National Right to Life Coalition. Apparently, he has never voted against an abortion restriction. Palin does not support abortion at all – including in cases of rape or incest – unless the mother’s life is at risk. This position places among the most conservative pro-lifers.

Although Palin and Grassley express disgust over the idea of the government compensating doctors who counsel patients on end-of-life issues, they believe that it is appropriate for the government to deny doctors and patients any autonomy on the question of choice. Palin and Grassley would invite the government into the lives of women and doctors without their consent, but they would deny a role for the government to facilitate care that a doctor and patient view as medically necessary and beneficial.

Grassley’s hypocrisy on this issue is even greater than Palin’s. Today, Grassley condemns an imaginary scenario involving the government deciding when to pull the plug on grandma. In the recent past, however, when Grassley encountered a real-life version of this story, he made a decision that contradicts his current rhetoric.
In 2005, Grassley supported legislation that injected Congress into the Terri Schiavo saga.

Schiavio’s husband – and medical proxy under Florida law -- waged an almost 10-year legal battle to refuse life-sustaining medical treatment on behalf of his wife, who was in a persistent vegetative state. After a federal judge ordered the removal of food and hydration, Congress intervened and passed a law that was blatantly crafted to nullify the Florida litigation and to keep Schiavo alive against the wishes of her husband, who acted on her behalf.

Although the Senate passed the statute by unanimous consent, Grassley revealed his position and expressed his support for the measure, stating that: “I support the effort to protect Terri Schiavo. It’s the first case of its kind, a chance to choose life over death. I gave the option to life. . . .” Grassley, however, did not vote for life over death. Instead, he voted to authorize direct federal involvement in an end-of-life medical decision – something he currently claims to abhor.
And to finish icing this cake, Palin and Grassley both support the death penalty. Capital punishment indisputably involves the government determining whether someone will live or die.

“Dumb” Works

Apparently, “dumb” works. According to the latest Gallup poll, the conservative backlash to healthcare reform has eroded support among voters – particularly independents. If members of the corporate media (as Glenn Greenwald affectionately describes the “news” outlets) did their job and uncovered the deception and hypocrisy associated with this backlash, then this movement’s rhetoric would actually face greater scrutiny and would perhaps lose some of its effectiveness.

The White House also fell asleep at the wheel, as this movement continued to mobilize and to work the media. Furthermore, I suspect that many of Obama’s Web-warriors are enjoying the final weeks of summer break and have not sufficiently organized on this issue.
Public opinion, however, is extremely malleable. If progressives redouble their efforts, a pretty solid reform package might actually get through Congress without damaging (and even possibly helping) the Democrats. Stay tuned.

Note: This blog entry is cross-posted in Glenn Greenwald's column on Salon.com.

9 comments:

>>"Of course, Palin’s new statement fails to point to any specific language in the bill that would make such counseling mandatory."

Exactly.

Reading Palin's Facebook blog post, it's really amazing how dishonest/incompetent she can be about this. When she attempts to prove that the consultations are mandatory (even though they're not), she just uses quotes and footnotes to create the appearance of citing to some kind authority. It's just window dressing.

In reality, her quotes to the bill completely fail to back up her assertion that the counseling is mandatory. She just adds the words "AUTHORIZES" and "MUST" outside the quotation marks.

>>"Section 1233 authorizes advanced care planning consultations for senior citizens on Medicare every five years, and more often “if there is a significant change in the health condition of the individual ... or upon admission to a skilled nursing facility, a long-term care facility... or a hospice program." [3] During those consultations, practitioners must explain “the continuum of end-of-life services and supports available, including palliative care and hospice,” and the government benefits available to pay for such services. [4]"http://www.facebook.com/note.php?note_id=116471698434

That is very frustrating to read, since the bill merely authorizes Medicare reimbursement of such counseling (which is a GOOD idea). In the end, the Annenberg Public Policy Center perhaps said it best: "if these definitions made treatments mandatory, seniors would all be required to get artificial legs and midwife services, too."http://factcheck.org/2009/07/false-euthanasia-claims/

Also, I'd just like to say that I've been following your blog for a few months now, and it's really a breath of fresh air. There are a lot of knee-jerk-bloggers out there who reflexively attack their ideological opposites over every little thing, and refuse to criticize those on their own side. Keep up the excellent commentary!

It looks like at least one person was impressed by Palin's use of quotes and footnotes (even though she failed to quote anything from the bill that makes the counseling mandatory):

>>"I would suggest that anybody who doubts her intellectual heft or her ability to learn and study, go to her Facebook page and look at the notes that she's taken. It's right there, the study that she has done and engaged in, in order to learn about section 1233."http://www.rushlimbaugh.com/home/daily/site_081309/content/01125108.guest.html

Samuel: Thanks for the post! You are exactly right about the Palin Facebook discussion. She is taking language from the statute that spells out the type of issues that must take place during the counseling sessions that bring them within the scope of coverage or the conditions (every 5 years, or for an admission, etc) that do the same.

And you are right to note that Palin's reasoning would turn every description of services covered into a mandate. So, an insurance contract between a hospital and insurance company provides that it will cover prostate cancer screenings in men over 40 or over 30 if they have a family history with the disease. Palin would say this mandates such care. Even worse, she doesn't even mention that the counseling is beneficial.

Samuel ~ Thanks for the excerpt. I haven't read Palin's Face book (or anyone else's) but since she seems a bit confused too perhaps I should offer some Cliff Notes as to why end of life and counseling is really, really, necessary for ALL CONSUMERS and now apparently more than ever for our politicians.

So let's look at just why this is important? We all know what a manicure looks like and most of us have had a haircut - these salon menu items and are familiar. Think of SNU, LTAC, PCU/Hospice as LOC - levels of care - and menu selections for the next item of a health need. BUT what the "health" is a SNU, LTAC, or Hospice? Hopefully you will remain healthy enough to never understand these terms, but for 50 or so million Americans these will be essential levels of care during progression of a illness event as a option of recuperation or a response to a failure to thrive in the acute care setting. ACUTE CARE is an overnight hospital stay.

I challenge any non-health care professional and even quite a few reported professionals to recognize the difference between the three very individual service lines. THIS IS WHY counseling and consultation must EXPLAIN the continuum for lay persons who just might need them.

For example, a skilled nursing facility is the recovery step following an acute care stay after a joint replacement or say a stroke - the needs of rehab OT, PT, Speech therapy, wound care and reestablishment of ADL (activities of daily living) can be learned and gained here. In this setting the patient should be interactive with staff and able to tolerate a couple hours of therapy daily during recovery. (Think - Tom Whitaker or Bethany Hamilton)

LTAC - Long Term Acute Care setting - this setting meets the long term care needs for life supportive care after exhausting the DRG ALOS in the tertiary care setting (of course these might be big words so I will make it simpler) When a patient fails to wean/come off a vent or is unable to tolerate rehab care at the SNU level because they are really, really, sick and need continued acute care needs (often for weeks to months) this is a place they can go to get the extended intensive care and reap the benefits of skilled medical professionals from all discipline with a aim to healing or not healing and moving to the next level of care - palliation. Usually these patients have a significant pulmonary or physical limitation/ complication from illness or acute trauma. Often people in this setting have suffered a big traumatic injury, cardiac arrest or pulmonary failure. This is not somewhere you ever wish to because it means you were really, really ill. (Think Terry Schiavo, Christopher Reed)

Hospice/Palliation would be supportive end of life care - this is where Hospice can enter the picture and brings a unique and compassionate skill set to the bedside. Where care tapers back and support for the family unit intensifies as death approaches. This is where people are given permission to recognize that life is terminal. The goal is comfort and support not cure, not rehab, not long term. (Think Tom Hanks and the movie Philadelphia)

I hope that everyone learns about these services and understands they are complex and they are different, unfortunately the best way to do that is to be a consumer or have a need for these services as a patient or family member of a patient. This is not a spa treatment or a visit to a high end salon this is health care and the prime directive of care is education through information. Advance warning and information about this is essential to helping a person cope with their own reality - where exactly is the big evil in this?????

Isn't there a conflict of interest when the same person who is responsible for cost containment, is also doing "end of life counseling?" I am speaking about the family physician, of course. The "gatekeeper" of health care services. The one who is rewarded for keeping our insurance costs low.

I am not against cost containment. Nor am I against end of life counseling. God knows... I am a hospice nurse, so I see the latter all the time.

BUT.... cost containment and end of life counseling by the SAME individual is a recipe for ethics nightmares. Personally, I can't imagine ANY doctor wanting to be responsible for both.

IMO, Palin's complaint falls short because it does not address this critical distinction. Yes, we have always had *voluntary* end of life counseling. But, it is done by someone who is NOT responsible for cost containment. And that seems to be the critical, missing piece in the current proposed HC legislation.

Stray: Doesn't this already happen? Doctors tell families "this is all we can do for your ____" all the time. I posted on this in the other thread, and understand the potential for conflict, but the potential for abuse exists in many professional relationships. Doctors can cut corners and save money in many ways. Lawyers can jeopardize their clients' interests to save money. Money managers can engage in self-dealing, rather than putting their clients first. But every profession has rules against acting on these conflicts. The AMA places the patient first. I am certainly not saying this happens in every case, but I am trying to understand how you could completely remove the doctor from this type of advice. If it is merely telling someone what a "medical directive" is, then ok. But if its really an effort to explain the available choices in a particular care setting, then that's another issue. The cardiothoracic surgeion is the best person to explain the prognosis for this additional heart surgery....not an outsider.

Darren and Stray - Primary Care Providers are the gate keepers outside the hospital. Inside the hospital the gate keeper is the Attending specialist or the Hospitalist/Internal Medical Attending. Our health care system works on an Order Entry system - ordered by the Attending carried out by the nurse. So the role of the doctor is to review and discuss options, make decisions WITH the patient and initiate these decisions as orders. The CODE status or level of care transition is a doctor's decision - their role, their responsibility. Doctors are reimbursed by the intensity of service - in the acute care setting this can be high$$, in the outpatient setting reimbursement is based on complexity of care, frequency of need and intensity of care - again this adds up$$$.

So just as Stray suggested "someone who is NOT responsible for cost containment. And that seems to be the critical, missing piece in the current proposed HC legislation." TRUE. However on the flip side in fact what we actually have right now is counseling by someone who is receiving financial gain from rendering services profiting from the service and advice. Or a balder outlook - someone getting paid as long as the patient stays alive. So which one is better or worse? I can't tell you the number of times I have had to push a doctor to have this same end-of-life conversation with the patient. This interaction is tough for all medical professionals - regardless of credentials. In my experience this is such a tough discussion that doctors avoid the interaction whenever possible. It is often up to the nurse to prod both sides into discussion. The end of life discussion is so painful to deliver and so terrible to receive what ends up happening is the doctors use language and terms in an effort to explain but the information is so frightening to hear that patients and families cannot process the event. So each side comes away thinking they have communicated when in fact the end-of-life discussion is delivered and received more like a progress report rather than a prognosis.

As crass as it sounds, health care is a business - there are costs associated with care delivery or removal. The reason most average Americans delay or put off care is because they cannot afford care. The bulk of the crisis has come from indigent care and from providing intensive care when heroic efforts are futile, rather than a model that is focusing energies and efforts on maximizing prevention and better access for primary and secondary care settings.

About Me and the Blog

Professor Darren Hutchinson teaches Constitutional Law, Remedies, Race and the Law, and a Civil Rights Seminar at the University of Florida Levin College of Law. Professor Hutchinson also holds the prestigious Stephen C. O’Connell Chair.
Professor Hutchinson received a B.A. from the University of Pennsylvania and a J.D. from Yale Law School. Before teaching law, Professor Hutchinson practiced commercial litigation at Cleary, Gottlieb, Steen and Hamilton in New York City. He also clerked for the late Honorable Mary Johnson Lowe, a former United States District Judge in the Southern District of New York.
Professor Hutchinson's research has appeared in many prestigious journals including the Cornell Law Review, Washington University Law Review, UCLA Law Review, University of Michigan Journal of Race and Law, and University of Pennsylvania Journal of Constitutional Law.
He has also presented his research at numerous universities, including Yale, Stanford, Columbia, University of Pennsylvania, University of Michigan, University of California at Berkeley, University of Virginia, Cornell, Georgetown, and Boston University.

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